forthcoming scholarship

* Forthcoming Scholarship

"The War on Terror, Constitutional Pathology, and United States v. Klein"

Florida International University Legal Studies Research Paper No. 10-31

HOWARD M. WASSERMAN, Florida International University – College of Law
Email: howard.wasserman

In "The Irrepressible Myth of Klein" (University of Cincinnati Law Review, 2010), I discuss the meaning, scope, and continued relevance of the Supreme Court’s historic decision in United States v. Klein (1871), arguing that Klein is not the judicially powerful a precedent many believe it to be. In this follow-up essay, I apply the insights of my analysis and exposure of Klein’s myths to two major pieces of legislation enacted as part of the ongoing War on Terror: The FISA Amendments Act of 2008 (granting retroactive immunity to telecommunications companies involved in warrantless surveillance) and the Military Commissions Act of 2006 (dealing with various issues surrounding the treatment and prosecution of terrorism detainees). I conclude that both laws largely survive constitutional scrutiny under Klein, thus illustrating the lack of doctrinal vigor and power – the myth – of Klein as constitutional precedent.

"Nonstate Actors in Armed Conflicts: Issues of Distinction and Reciprocity"


DAPHNÉ RICHEMOND-BARAK, Radzyner School of Law, Interdisciplinary Center Herzliya
Email: barak.daphne

This chapter considers how concepts designed to regulate state-to-state interaction apply to conflicts involving nonstate actors – be they guerilla groups, terrorist organizations, or private military contractors. The “principle of distinction” holds that civilians and combatants are clearly distinguishable protagonists on or near the battlefield. “Reciprocity” in international law refers to the expectation by a belligerent state that other state parties to a conflict will respect similar legal and behavioral norms – non-use of prohibited weaponry, minimization of collateral damage, and humane treatment of prisoners of war. I focus on reciprocity and distinction because they constitute meta-issues whose resolution determines the applicability of accepted legal principles to virtually all modern conflicts. A close examination of these topics suggests that reciprocity and the principle of distinction are of central importance in conflicts involving nonstate actors. On the issue of distinction, I argue for a more expansive understanding of the notion of combatant – an understanding that allows for the greater application of international humanitarian law to nonstate actors, an easier implementation of the principle of distinction, and improved protection of civilian populations. On the issue of reciprocity, I argue that most of international humanitarian law is binding in most conflicts on most actors (whether or not the parties behave reciprocally). The only situation in which a state may not be bound by all of humanitarian law is when an opposing nonstate party repeatedly violates international humanitarian law in an international armed conflict.

"International Security and International Law in the Northwest Passage"

Vanderbilt Journal of Transnational Law, Vol. 42, pp. 1109-1132, 2009

JAMES KRASKA, U.S. Naval War College, Foreign Policy Research Institute (FPRI), Woods Hole Oceanographic Institution – Marine Policy Center, International Institute for Humanitarian Law, Loyola University of Chicago – Inter-University Seminar on Armed Forces and Society (IUS)
Email: james.kraska

Concern over the loss of sea ice has renewed discussions over the legal status of the Arctic and subarctic transcontinental maritime route connecting the Atlantic and Pacific Oceans, referred to as the “Northwest Passage.” Over the past thirty years, Canada has maintained that the waters of the Passage are some combination of internal waters or territorial seas. Applying the rules of international law, as reflected in the 1982 United Nations Law of the Sea Convention, suggests that the Passage is a strait used for international navigation.Expressing concerns over maritime safety and security, recognition of northern sovereignty, and protection of the fragile Arctic environment, Ottawa has sought to exercise greater authority over the Passage. This Article suggests that Canada can best achieve widespread global support for managing its maritime Arctic by acknowledging that the Passage constitutes an international strait and working through the International Maritime Organization to develop a comprehensive package of internationally accepted regulations.

"The Choice of Law Against Terrorism"

Journal of National Security Law, Forthcoming
Notre Dame Legal Studies Paper No. 10-20

MARY ELLEN O’CONNELL, Notre Dame Law School
Email: MaryEllenOConnell

The Obama administration has continued to apply the wartime paradigm first developed by the Bush administration after 9/11 to respond to terrorism. In cases of trials before military commissions, indefinite detention, and targeted killing, the U.S. has continued to claim wartime privileges even with respect to persons and situations far from any battlefield. This article argues that both administrations have made a basic error in the choice of law. Wartime privileges may be claimed when armed conflict conditions prevail as defined by international law. These privileges are not triggered by declarations or policy preferences.

"Catch and Release: A Role for Preventive Detention Without Charge in Canadian Anti-Terrorism Law"

Institute for Research on Public Policy Study, No. 7, July 2010

CRAIG FORCESE, University of Ottawa – Faculty of Law
Email: cforcese

Since 2001, preventive detention has become almost commonplace as a means of “incapacitating” terrorist networks. No other development — with the possible exception of the use of extreme interrogation techniques — has been as controversial, or as uncomfortably reconciled with conventional legal practices. But there are legitimate uses of preventive detention that respect the legal principles of protection of civil liberties.

This study proposes lessons for Canada from state practices in the United States, the United Kingdom and Australia since 9/11 that might reasonably guide the development of an appropriate system of preventive detention; specifically, one that is maximally effective within a sphere of tolerable restrictions on civil liberties. It does so in four sections. In the first section, the study compares several models that are essentially systems of preventive detention. In the second section, it examines the Canadian legal environment in which any discussion of preventive detention must be situated. The study highlights the extent to which Canadian law already empowers the state to preempt terrorist activity. The author concludes that while the gap that might reasonably be filled by a separate system of preventive detention is narrow, it does exist. In the third section, the study proposes, first, criteria for measuring the public safety effectiveness of such a system and, second, a zone of tolerable civil liberty restrictions. In the last section the author draws on these criteria and prior practice to propose a model for the Canadian system of preventive detention.

The author proposes a model that balances effectiveness and civil liberties. He identifies as a legitimate concern the narrow circumstances where the state (1) has reason to believe that a terrorist attack will occur; (2) has reason to believe that a particular group is behind the plot and that the suspect is a member of that group; but (3) has no information, other than this belief, to connect that particular individual to the plot. In these circumstances, conventional legal instruments allowing the state to disrupt that threat through detention of the individual may not be available. In that narrow space, there are arguments in favour of preventive detention.

The author suggests that section 83.3 of the the 2001 Anti-terrorism Act, the anti-terrorism provision allowing short-term detention in circumstances where conventional arrest powers could not be exercised, was a reasonable approach. He proposes a revamped section-83.3 process that adds certain other civil liberties safeguards and also permits the constrained use of secret evidence and special advocates. The net result is a system of “catch and release” (or catch and release subject to a peace bond) that focuses on disruption of a threat via the short-term detention of persons who are tied to specific threats. The author rejects approaches that detain solely on the basis of perceived inherent dangerousness.

"The Federalist and Executive Power"

APSA 2010 Annual Meeting Paper

JAMES P. PFIFFNER, George Mason University
Email: pfiffner

Occasionally, the United States is confronted with the dilemma that, in emergencies, presidents may find it necessary to take actions that ignore constitutional restraints and break the law. In such cases, a strict adherence to the law might constrain the president from acting quickly to protect national security. Some have argued that the president has the constitutional authority to take whatever actions are deemed to be necessary, regardless of the law, and that this authority is available indefinitely as long as it is exercised under the commander in chief authority conferred in Article II. After reviewing the arguments in The Federalist, this paper argues that in crises presidents may legitimately take extraordinary actions outside their constitutional authority, but their actions are legitimate only insofar as they are transparent and presidents seek congressional sanction as soon as the immediate emergency has passed.

"Peace Unkempt: How Ambiguities in Public International Law and International Humanitarian Law Contributed to the Failed U.N. Intervention in Somalia"

BJORN C. SORENSON, Skadden, Arps, Slate, Meagher & Flom LLP
Email: bjorn_sorenson

The collapse of the U.N. mission in Somalia was directly precipitated by three inter- related ambiguities in the relations between Somalia, the United Nations, and the United States. First, armed U.N. intervention in a failed state presented complex issues regarding the relation between Somalia and the United Nations, functional distinctions between international armed conflict and non-international armed conflict, and the applicability of international humanitarian law to U.N. military forces and belligerents in a failed state. Second, the Security Council’s approval of humanitarian intervention in Somalia provided U.N. forces a conflicting mandate: to establish a “caretaker” government, effectively overriding Somalia’s sovereignty, while also conducting a “peacekeeping” operation that deferred to the sovereign will of Somalia’s internal, domestic peace process. Finally, limited rules of engagement hampered UNOSOM missions that ostensibly acted under a banner of U.N. neutrality while they attempted to enforce a Security Council-issued “warrant” for the arrest of Aideed.

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